How Big Does That Hole Have To Be?

By Author: Samuel D. Bornstein
Total Articles: 6
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Governments enjoy a limited liability from liability for tortious conduct. Plaintiffs who allege injury arising from governmental action or inaction are provided with recourse pursuant to the Tort Claims Act.

In a recent decision, Charney v. City of Wildwood, No. 08-4241, plaintiff sued Wildwood for injuries allegedly sustained when she tripped and fell on the Wildwood boardwalk. She claimed that Wildwood was aware that the boardwalk had a hole about one-and-one-half inch deep and one-and-one-quarter inch wide yet it permitted the condition to continue unrepaired.

Wildwood asked the court to enter judgment without a trial. It argued that even if the allegations be assumed as true, the hole was not a dangerous condition as defined by the Tort Claims Act.

Plaintiff resisted the motion, arguing that Wildwood should have had notice of the condition because it conducted daily inspections of the boardwalk. She argued, too, that boards on either side of the board containing the hole had been replaced and a center nail was installed to resecure the incident board.

YOU BE THE JUDGE: Is a plaintiff entitled ...
... to a trial to establish a municipality was responsible for injuries sustained as a result of a hole in the municipal boardwalk?

The motion judge granted summary judgment to Wildwood. The judge recognized that there may have been evidence that Wildwood was aware of the condition. However, there was no evidence that its failure to remedy the defect was outrageous or patently unacceptable behavior to impose liability under the Tort Claims Act.

Pedestrians must expect some areas of imperfection on walkway surfaces, and not every defect in a walkway is actionable. Imperfections in boardwalk surfaces were particularly commonplace. A public entity's failure to remedy every small defect in a boardwalk cannot be deemed palpably unreasonable.

The decision points out that a courtroom can bring justice and may be the only way to protect your rights. Our Firm knows courtrooms; we have harnessed the power of the law in courtrooms to bring justice for our clients for decades in West Orange, Wyckoff, Waldwick, Roselle Park, Paramus, Kinnelon, Haworth, Butler, Jersey City, Maywood, Maplewood, Hackensack, Saddle River, Alpine, Freehold, Guttenberg, Pequannock and throughout Bergen County, Morris County, Passaic County, Essex County and Hudson County. Please contact us to discuss how we can help you protect your rights in a new lawsuit or provide a Asecond opinion@ about your pending lawsuit. There is no obligation for the initial consultation. Copyright Samuel D. Bornstein, P.A. 2008-2010.

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About The Author:

Author, Samuel D. Bornstein, is associated with the law firm (and has 40 years of experience in representing individuals and a wide variety of businesses from Fortune 100 companies that need specialized assistance to smaller companies that look to the firm as their "in house" lawyer for general day-to-day advice. The firm is experienced with transactional work and litigation, emphasizing corporate and partnership operations, employment.